Using family dispute resolution

Using family dispute resolution

Family dispute resolution is a process in which an independent family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other.

Why use family dispute resolution

it may help your communication with your former partner and others involved.

When to go to family dispute resolution

You can try family dispute resolution at any stage of your separation, even if you have started court proceedings. The court can also order parties to participate in family dispute resolution at any time throughout the court process.

If you want court orders about children (parenting orders), you usually have to try family dispute resolution first.

You can sometimes go directly to court without a certificate stating that you have attempted family dispute resolution if there has been family violence, child abuse or in urgent situations. Get legal advice.

You are not required to go to family dispute resolution if your application is only for divorce or annulment of your marriage.

How family dispute resolution works

Before family dispute resolution takes place, you will be assessed to see if the service is right for your case. Usually each party will be interviewed separately for the assessment.

The process is conducted by an independent family dispute resolution practitioner. They must be accredited and registered on the Attorney General’s Family dispute resolution register. They can:

help you to discuss the issues and look at your options

help work out how to reach agreement

give you a certificate at the end of the process.

Getting a certificate

If you can’t resolve your dispute you may need a certificate to prove to the court that you have tried family dispute resolution or it is not suitable in your situation.

been to family dispute resolution with your ex-partner (or other involved person) and you both genuinely tried to sort out an agreement

been to family dispute resolution with your ex-partner (or other involved person) and one or both of you did not genuinely try to come to an agreement

tried to go to family dispute resolution, but the other person did not turn up or did not want to participate.

The certificate may also say you are not required to go to family dispute resolution because it was assessed as not appropriate.

When family dispute resolution is not appropriate

Family dispute resolution is not right for every situation, particularly if:

one person does not agree to attend

your safety or the children’s safety is assessed to be at risk

a person’s capacity to participate is affected by, for example, a mental illness or a substance abuse problem

allegations of child abuse are being investigated

there is an intervention order which prevents you from having any contact with the other person and does not have an exception clause allowing for mediation

the case is urgent, for example, location (finding) and recovery (returning) of children orders, or where assets may be sold, lost or destroyed.

Family violence

Sometimes it is not appropriate to go ahead with family dispute resolution where there has been family violence. However, often special arrangements can be made to make sure the process can proceed in a safe way. For example, you and the other party can be in separate rooms or participate over the telephone. You might also be able to have a lawyer or support person with you.

You should let your family dispute resolution service know if you are worried about your emotional or physical safety. They will want to make sure you feel safe throughout the process and can negotiate freely.

Confidentiality

Discussions during family dispute resolution generally cannot be used anywhere else unless:

you give permission

the practitioner believes that this is necessary to follow the rules of any law.

If you are under 18 both parents also need to agree to the information being given out. If they can't agree, the court may make a decision.

It is a serious offence to disclose confidential information and penalties apply.

Family dispute resolution discussions may not be confidential if:

the family dispute resolution practitioner reasonably believes that a child or children have been or are at risk of abuse (physical or sexual assault, serious psychological harm or neglect.)

there is a risk of harm to any person involved or to their property

a crime involving violence or threats of violence may be prevented.

For example, if the information suggests that a child has been abused or is at risk of abuse, the law says that a family dispute resolution practitioner must give that information to a child protection agency. In Victoria that agency is the Department of Human Services.

However, it does not necessarily mean that the information will be ‘admissible’ (allowed to be used) in court. It can only be used in court if:

an adult admits that a child has been abused or is at risk of abuse

a child says something that shows they have been abused or are at risk of being abused.

Before this information can be used, the court must also make sure they cannot get the same information elsewhere.

Parenting plans

If you reach an agreement on arrangements for your child during family dispute resolution, this can be set out in a parenting plan. A parenting plan must be in writing, dated and signed by both parents. A parenting plan may deal with any of the following:

who has parental responsibility for the child

who the child will live with

when the child will spend time with another person, including their other parent, grandparents and family members

communication between the people involved, including the parents, the child and other family members

financial support of the child

long-term decisions, such as the child's education, medical treatment or religion.

If family dispute resolution does not work

If family dispute resolution is not successful you can go to court. If you are applying for a parenting order, you must get a certificate from the registered family dispute resolution practitioner and file this with your application as evidence of your attempt at family dispute resolution.

About this website

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

How Victoria Legal Aid can help: Call us on 1300 792 387, Monday to Friday from 8.45 am to 5.15 pm, for free information over the phone about the law and how we can help you. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au